No matter who you work with, mistakes can happen. While most clients do not want to think that their lawyer would make a mistake, it does happen. If you suffered harm because of a lawyer’s mistake, you may have to determine whether it was a mistake or malpractice.
The American Bar Association explains what separates mistakes from malpractice.
Without damages, there is no malpractice. For example, if your attorney missed the statute of limitations deadline and did not file your case, but there was certainty that you would win, the attorney’s actions harmed you. In this case, you would file a lawsuit based on what you most likely would have won from the lawsuit.
The reason that you want the damages to be significant is because it costs money to file a lawsuit against an attorney. Generally, there are two cases at hand. You have the case of malpractice and the case that led you to file the malpractice suit to begin with.
Negligence is the foundation of tort law. When proving legal malpractice, you must prove that the lawyer acted negligently. Mistakes do happen and mistakes are not always negligent. To prove negligence, you must put yourself in the attorney’s shoes when the mistake happened. Would it be a reasonable mistake at the time? Remember that the lawyer did not have the benefit of hindsight.
If the lawyers actions were not consistent with the standard of care that most lawyers would present, then he or she may have acted negligently. This would be a breach of the duty of care.
Legal malpractice is more than a mistake, it is an act of negligence that causes harm.